Kelly recognized that the Battles' circumstances fit
the paradigm that the accused had identified in her memorandum to
the firm and, accordingly, explained to the Battles the concept
that the accused had developed. Kelly also explained to the
Battles that the accused handled motions for the firm. Kelly
told the Battles that he would talk to the accused about the case
and then left the meeting. He went to the accused's office,
where he proceeded to describe the situation and to show her a
letter and a proposed affidavit that he had drafted for Patricia
Battle's signature.

We note here that there is a great divergence in the
testimony on this topic. The accused denies that she assisted
Kelly at this time. However, not only did Kelly testify that the
accused assisted him in revising the affidavit, but Patricia
Battle also testified that Kelly had told her about another
lawyer in the firm who had developed the Measure 40 theory and
that, during the meeting with Kelly, Kelly had left the office to
talk to that other lawyer about the affidavit. The trial panel,
which had the opportunity to see and hear the witnesses, made
credibility findings that the accused was evasive and
argumentative and that Kelly was credible. Generally, this court
gives weight to the trial panel's credibility findings, although
the court reviews disciplinary cases de novo. In re Gustafson,
327 Or 636, 644-45 n 3, 968 P2d 367 (1998) (Gustafson I). In
light of the accused's manner of testifying (which the trial
panel correctly characterized as evasive and argumentative),
together with the fact that Patricia Battle's testimony bolsters
Kelly's, we accept the trial panel's credibility findings and
find that the accused did revise Patricia Battle's affidavit in
the ways described below.

When Kelly presented the affidavit to the accused, it
contained only one substantive paragraph, stating in effect that
Patricia Battle wished to assert what she claimed was her right
under Article I, section 42, of the Oregon Constitution (1996) to
have the case against her husband dismissed. The accused added
two paragraphs to the affidavit, one stating that Patricia Battle
had contacted the district attorney's office and communicated her
wishes that the case be dismissed, and one stating that the
district attorney had not responded. The letter was directed to
the district attorney and asked him to schedule a hearing to
dismiss the criminal charges. The accused apparently did not
change the accompanying letter.

Kelly typed the documents while Patricia Battle was in
the office; Patricia Battle then signed them. (3)
Both the
letter and the affidavit were printed on plain white paper and
bore no indication that they had been prepared by the accused's
law firm. As noted, Patricia Battle later testified that, at the
time that she met with Kelly, she knew nothing about Article I,
section 42 (1996). Neither Kelly nor the accused ever advised
Patricia Battle that she should seek independent counsel. The
affidavit eventually was filed with the court, and the letter was
sent to the district attorney.

The next day, the accused reviewed the Battle file, did
some legal research, and drafted a brief entitled "Amicus Brief
in Support of Crime Victim's Right to Compel Dismissal of
Charges." After she talked to Kelly about the information that
he had obtained from Patricia Battle, the accused signed the
brief and, she testified, gave it to Kelly for filing and
service. (Kelly did not recall how the documents were filed and
served.)

In any event, the accused's office sent the brief to
the court (and served it on the district attorney) without any
attachment; the affidavit was filed separately. No one filed a
motion to dismiss the charges against Battle, but the court
scheduled a hearing in the matter for May 1998. Neither the
trial court judge nor the court clerk knew how the hearing on the
motion to dismiss came to be placed on the calendar.

The accused and Kelly met with the Battles in the
accused's office on the morning of the hearing, to prepare
Patricia Battle for the hearing. Present at the meeting were the
accused, Kelly, the Battles, and Patricia Battle's sister, Scott.
According to Scott, the accused was "in charge of the meeting."
The accused told Patricia Battle that she would be helping her
with what to say to get the charges dismissed, as well as how to
say it. She explained how the hearing would proceed and what
Patricia Battle should tell the court. Specifically, she told
Patricia Battle that she should say that her rights had been
violated. The accused also stated at that meeting that she did
not want Patricia Battle to be sworn in as a witness at the
hearing, because she did not want any sworn statements on the
record that later could be used in the criminal case against
Warren Battle. The accused did not tell Patricia Battle that her
interests might be in conflict with her husband's or that she
should seek her own counsel. It appears that, during the
meeting, Patricia Battle did not fully understand that the
accused represented only Warren Battle. Scott, for her part,
affirmatively formed the impression that the accused represented
Patricia Battle.

Following the meeting, the accused, Kelly, the Battles,
and Scott appeared before Judge Harris at the hearing concerning
the request to dismiss the charges. The accused appeared as
Warren Battle's lawyer. Judge Harris asked the accused if she
was representing Patricia Battle, and she answered no. During
the hearing, Judge Harris asked that Patricia Battle be sworn to
make a statement. The accused objected. According to the
accused, she did so because the request was "procedurally
inappropriate," insofar as the motion was Patricia Battle's own
and Patricia Battle was appearing before the court, therefore, to
represent herself pro se, not as a witness.

The accused did not then (or at any other time) respond
directly to Judge Harris's question. Instead, she told Judge
Harris that she was allowed to communicate with the victim and
that it was appropriate to involve herself as she had. The
accused did not disclose the specifics of any communications that
she or any other lawyer at the firm had had with Patricia Battle.
She did not tell Judge Harris that Kelly had met with the Battles
and had advised Patricia Battle that she might have a
constitutional right to have the charges against her husband
dismissed; she did not mention that the firm had prepared the
affidavit and the letter and that she had made substantive
additions to the affidavit; she did not inform Judge Harris that
she had told Patricia Battle that she would try to prevent her
from being sworn as a witness; and she did not disclose --
although one of her questions to Patricia Battle in open court
certainly suggested it -- that she had met with the Battles
earlier that day. Instead, she spoke generally of her right to
facilitate a victim's effort to have the charges against an
assailant dismissed and then returned to her legal arguments in
support of the "amicus" brief. Upon returning to the hearing,
Judge Harris denied Patricia Battle's request to have the charges
against her husband dismissed.

Judge Harris responded to that letter in a letter of
his own in which he stated, "[B]ased on your analysis of the
applicable statute and DR's, I am satisfied that my impression
and belief at the time of our conversation, was incorrect."
Judge Harris went on to "apologize for the error."

In June 1998, a Yamhill County deputy district attorney
filed a complaint with the Disciplinary Counsel's Office
concerning the accused's conduct. Subsequently, the Disciplinary
Counsel's Office asked the accused to explain whether her "advice
to Patricia Battle and preparation of an Amicus Brief on
[Battle's] behalf violated DR 7-104(A)(2)." In response, the
accused wrote a letter, as she put it, to "clear up two
misconceptions." First, she stated, "I did not advise Patricia
Battle. All pre-hearing contact with Ms. Battle was with another
attorney employed by my law firm." She did not qualify or
explain those representations in any way. Rather, she confined
her explanation to a recitation of what Patricia Battle had told
the other firm lawyer at the April meeting. Second, she
clarified that she had not filed the amicus brief on Patricia
Battle's behalf, but on behalf of the firm's client, Warren
Battle. She concluded by elaborating on her view that there was
no possibility of a conflict of interest in any event, because
both Warren Battle and Patricia Battle desired the same outcome:
dismissal of Warren Battle's criminal case.

The Disciplinary Counsel's Office referred the matter
to a Local Professional Responsibility Committee (LPRC) for
further investigation. Among other things, the accused told the
LPRC investigator that Kelly had been the other lawyer involved.
Additionally, she later stated in her deposition that, when she
used the phrase, "pre-hearing contact" in her initial response to
the Bar's inquiry, she meant contact before the day of the
hearing, not contact on the day of the hearing.

The Bar filed its formal complaint against the accused
in October 2000; the charges were heard in November 2001. The
trial panel did not issue its opinion until June 4, 2003, more
than 18 months after the trial and more than five years after the
events that led to this proceeding. As noted, the trial panel
concluded that the accused had committed all the charged
violations of the disciplinary rules and suspended the accused
from the practice of law for six months.

II. ALLEGED VIOLATIONS

A. Advising Unrepresented Person

In its first cause of complaint, the Bar alleges that
the accused violated DR 7-104(A)(2) when she assisted and
directed another lawyer in her firm in advising Patricia Battle
concerning her supposed right as a crime victim under Article I,
section 42, of the Oregon Constitution (1996) to have the
criminal charges against her husband dismissed; when the accused
revised an affidavit on that matter drafted by the other lawyer
in the firm on Patricia Battle's behalf; and when she met with
Patricia Battle in her office on the day of the hearing to
prepare Patricia Battle for the hearing.

DR 7-104(A)(2) provides, in part:

"During the course of the lawyer's representation
of a client, a lawyer shall not:

"* * * * *

"(2) Give advice to a person who is not
represented by a lawyer, other than the advice to
secure counsel, if the interests of such person are or
have a reasonable possibility of being in conflict with
the interests of the lawyer's client."

It is undisputed that Patricia Battle was not
represented by a lawyer and that neither the accused nor anyone
at her firm advised Patricia Battle to secure counsel. To
establish that the accused violated DR 7-104(A)(2), then, the Bar
must show, by clear and convincing evidence, that Patricia
Battle's interests were, or had the reasonable possibility of
being, in conflict with those of the accused's client, Warren
Battle, and that the accused gave Patricia Battle "advice." We
address each of those requirements in turn.

The accused steadfastly has maintained that Patricia
Battle's interests were not in actual conflict with those of the
accused's client because both desired the same outcome, viz.,
dismissal of the criminal charges against Warren Battle.
However, the rule against giving advice to an unrepresented
person applies both in cases in which the interests of the two
parties actually conflict and in which there is the reasonable
possibility of the interests conflicting. The question, then, is
whether there was a reasonable possibility of Patricia Battle's
interests being adverse to those of her husband, notwithstanding
the fact that they had a common desire, at least for some period
of time, in having the criminal case against Warren Battle
dismissed.

In fact, the accused's conduct at the hearing
demonstrates that she thought that there was a possibility of a
conflict of interest. The accused objected to Patricia Battle
being sworn in during the hearing on the motion to dismiss the
charges against Warren Battle. The accused made that objection,
as she earlier had informed Patricia Battle that she would,
because she was concerned that anything that Patricia Battle said
under oath at the hearing could be used later against Warren
Battle at his criminal trial. In addition, it is significant
that the accused knew from the police reports in Warren Battle's
client file that Patricia Battle had been injured in the
altercation that had led to Warren Battle's arrest, that children
had been present at the time of the incident, and that Warren
Battle had a criminal record and was a registered sex offender.
Those facts suggest to us (and, we think, also must have
suggested to the accused, notwithstanding her protestations to
the contrary) that the Battles' objective personal interests were
adverse and, therefore, that a likely conflict of interest
existed between them. Based on the foregoing, we hold that the
interests of Patricia Battle were or had the reasonable
possibility of being in conflict with those of the accused's
client, Warren Battle.

The accused insists that DR 7-104(A)(2) does not
prohibit a lawyer from giving an unrepresented person "procedural
information," as opposed to "legal advice," and that, because the
accused reasonably thought that she had given Patricia Battle
only procedural information, the entire disciplinary case against
her, including the charges relating to misrepresentation by
omission and prejudice to the administration of justice, fails.
Assuming for purposes of argument that the accused is correct
that a lawyer may give procedural information to an unrepresented
person without violating DR 7-104(A)(2), our recitation of the
facts above demonstrates that what the accused did here went
beyond that. In light of our earlier conclusion that Patricia
Battle's interests had a reasonable possibility of being in
conflict with the interests of the accused's client, Warren
Battle, we hold that the accused violated DR 7-104(A)(2).

B. Failing to Disclose Certain Communications to Judge

The Bar further alleges in its first cause of complaint
that the accused violated DR 1-102(A)(3) (prohibiting conduct
involving dishonesty or misrepresentation), DR 1-102(A)(4)
(prohibiting conduct prejudicial to administration of justice),
and DR 7-102(A)(3) (professional misconduct knowingly to conceal
or fail to disclose that which lawyer is required by law to
reveal) in the course of her communications with Judge Harris.

We turn first to the conduct allegedly involving
dishonesty and misrepresentation. DR 1-102(A)(3) provides:

A lawyer violates DR 1-102(A)(3) either when the lawyer
makes an affirmative false statement or when the lawyer remains
silent despite having a duty to speak. In re Claussen, 331 Or
252, 261, 14 P3d 586 (Claussen II); Gustafson I, 327 Or at
647. A misrepresentation, "whether direct or by omission, must
be knowing, false, and material in the sense that the
misrepresentations would or could significantly influence the
hearer's decision-making process." In re Eadie, 333 Or 42, 53,
36 P3d 468 . As this court stated in Gustafson I, "in the
context of misrepresentation by nondisclosure under DR 1-102(A)(3), the 'knowing' element requires that the accused lawyer
know both that the lawyer is failing to disclose information that
the lawyer has in mind and that that information is material to
the case at hand." 327 Or at 648 (emphasis in original).

A misrepresentation to a court by nondisclosure also
may constitute "conduct that is prejudicial to the administration
of justice" in violation of DR 1-102(A)(4). (11)
To conclude
that a lawyer has violated DR 1-102(A)(4), this court must
determine the existence of each of three elements: (1) the lawyer
engaged in "conduct," that is, the lawyer did something that he
or she should not have done or failed to do something that the
lawyer should have done; (2) the conduct occurred during the
"administration of justice," that is, during the course of a
judicial proceeding or another proceeding that has the trappings
of a judicial proceeding; and (3) the lawyer's conduct resulted
in "prejudice," either to the functioning of the proceeding or to
a party's substantive interests in the proceeding. In re Haws,
310 Or 741, 746-48, 801 P2d 818 (1990); Gustafson I, 327 Or at
643. Prejudice may result from repeated acts that cause some
harm to the administration of justice or from a single bad act
that causes substantial harm. Gustafson I, 327 Or at 643.

At the May 1996 hearing on the motion to dismiss the
charges against Warren Battle, the accused knew that Kelly had
presented Patricia Battle with the Article I, section 42 (1996),
theory and that Patricia Battle had not been aware before that
time that she might have some constitutional right to have the
charges against her husband dismissed. The accused was aware
that Kelly had drafted the letter and the affidavit. The accused
was aware that she herself had added substantive paragraphs to
the affidavit. The accused was aware that she had met with
Patricia Battle earlier on the day of the hearing and had told
Patricia Battle what would happen at the hearing, including
telling her that the accused would not permit Patricia Battle to
be sworn in and coaching her concerning what to say at the
hearing and how to say it. Nonetheless, when Judge Harris
brought the accused and the prosecutor into his chambers during
the hearing and pointedly asked the accused whether she had
advised Patricia Battle, she failed to disclose any of the
foregoing. Instead, according to Judge Harris, she "spoke in
terms of her authorization to do as she was doing; that is, that
she believed that Measure 40 gave certain rights to the victim
and that Ms. Battle had the right to pursue dismissal of the
case; that [the accused], in her involvement in it, was, I
believe, attempting to facilitate that."

As Judge Harris later testified before the trial panel,
he may not have asked the accused specifically to disclose all
the contacts that the accused and other lawyers at her firm had
had with Patricia Battle, but the "tenor of where [he] was going"
was to explore the nature of those contacts. Given the events in
open court that first had preceded it, we think that the
circumstances of the meeting in Judge Harris's chambers clearly
called for the accused at least to inform Judge Harris of any and
all facts pertinent to the question whether she had given
Patricia Battle legal advice. Rather than do so, however, she
knowingly concealed from the judge the details of her contacts
with Patricia Battle. The accused had a duty to respond
completely and candidly to the judge's questions; instead, the
accused dissembled, as she consistently was to do thereafter in
her letter to Judge Harris and in her dealings with the Bar.

The accused maintains that she did not think that she
had given Patricia Battle legal advice and, therefore, strictly
speaking, she was truthful in her responses to Judge Harris.
That argument entirely misses the mark. The question during the
meeting in Judge Harris's chambers was not whether the accusedthought that her conduct had violated the disciplinary rules.
Rather, as discussed, the question was whether the accused's
responses to Judge Harris were dishonest. As to that question,
there is no doubt that the accused knew that the nature and
content of her contacts with Patricia Battle were the reasons for
the meeting in chambers and, therefore, would be material to
Judge Harris's determination whether the accused had a conflict
of interest. By deliberately avoiding giving Judge Harris the
full picture of her contacts with Patricia Battle, the accused
knowingly withheld material information that would have allowed
Judge Harris the opportunity to assess the situation for himself.
The foregoing discussion demonstrates that information
concerning the nature and extent of the accused's and her firm's
contacts with Patricia Battle was information that "would or
could significantly influence the hearer's decision-making
process." Eadie, 333 Or at 53. Indeed, Judge Harris later
testified that, had he known the full story, he would have come
to a different conclusion than did the accused about whether she
had given Patricia Battle advice. We conclude that, under the
circumstances, the accused's answers to Judge Harris in chambers,
and her statements in her subsequent letter to him, were
misleading and amounted to misrepresentations by nondisclosure.

As this court stated in In re Hiller, 298 Or 526, 534,
694 P2d 540 (1985), "[a] person must be able to trust a lawyer's
word as the lawyer should expect [the lawyer's] word to be
understood, without having to search for equivocation, hidden
meanings, deliberate half-truths or camouflaged escape hatches."
The accused's half-truths to Judge Harris, both in chambers and
in her subsequent letter, constituted misrepresentations by
nondisclosure in violation of DR 1-102(A)(3).

The trial panel also held that the accused's conduct in
misrepresenting to Judge Harris the nature and extent of her and
her firm's contacts with Patricia Battle was conduct prejudicial
to the administration of justice in violation of DR 1-102(A)(4),
but the trial panel did not support its conclusion with any
written analysis. As discussed above, the Bar must establish
three elements to demonstrate that a lawyer has violated DR 1-102(A)(4): (1) the lawyer engaged in conduct covered by the rule;
(2) the lawyer's conduct occurred in the course of a judicial or
some similar proceeding; and (3) the lawyer's conduct caused
prejudice. Haws, 310 Or at 746-48. In this case, we agree that
the accused's misrepresentation to Judge Harris at the meeting in
chambers constituted "conduct" under the rule and that it
occurred during the course of a judicial proceeding, viz., the
effort to have the charges against Warren Battle dismissed.
However, the Bar has failed to prove the final element,
prejudice.

Finally, the Bar also contends that the accused
violated DR 7-102(A)(3), as well as DR 1-102(A)(3) and (4), when
she permitted Patricia Battle's affidavit and letter to be filed
with the court without indicating that her firm had prepared
them. The trial panel found that the evidence as to why both the
letter and the affidavit did not indicate that they had been
prepared by the accused's firm was ambiguous. We agree with that
assessment. Based on that finding, the trial panel concluded,
and we agree, that the Bar failed to present clear and convincing
evidence that the facts that the two documents were printed on
plain white paper and did not identify their authors amounted to
a violation of either DR 1-102(A)(3), or DR 1-102(A)(4), DR 7-102(A)(3).

C. Failing to Respond Truthfully to Disciplinary Authorities

The Bar's second cause of complaint charges the accused
with violating DR 1-103(C) and DR 1-102(A)(3) by failing to
respond truthfully to the disciplinary authorities. DR 1-103(C)
provides that "[a] lawyer who is the subject of a disciplinary
investigation shall respond fully and truthfully to inquiries
from * * * a tribunal or other authority empowered to investigate
or act upon the conduct of lawyers." As discussed above, DR 1-102(A)(3) provides that it is professional misconduct for a
lawyer to "[e]ngage in conduct involving dishonesty, fraud,
deceit or misrepresentation."

Specifically, the Bar alleged, and the trial panel
concluded, that the accused violated those rules when, in her
letter to the Bar, she wrote without elaboration that "I did not
advise Patricia Battle" and that "[a]ll pre-hearing contact with
Ms. Battle was with another attorney employed by my law firm."
In response to those charges, the accused continues to adhere to
her position that she did not give Patricia Battle advice. She
also argues that, when she used the phrase "pre-hearing contact,"
she meant contact with Patricia Battle before the date of the
hearing.

We already have concluded that the accused did advise
Patricia Battle. We also view the accused's explanation of her
statement regarding "pre-hearing contact" as implausible.
Accordingly, we find that the accused was untruthful with the Bar
when she made both statements. However, before concluding that
the accused violated DR 1-103(C) and DR 1-102(A)(3) when she made
those untrue statements to the Bar, we think that more needs to
be said.

In its letter to the accused, the Bar told the accused
that it was requesting her response to allegations that her
conduct with respect to Patricia Battle violated DR 7-104(A)(2),
so that it could make a "fair and informed analysis of these
allegations." Under both DR 1-103(C) and DR 1-102(A)(3), the
accused had a duty to respond fully and truthfully to that
letter. That is, the accused was obligated under both rules to
disclose fully to the Bar investigator all facts pertinent to the
ethical inquiry, including descriptions of all her and her firm's
contacts with Patricia Battle. When the accused responded simply
that she had not advised Patricia Battle and that all prehearing
contact was with another lawyer in her firm, the accused had to
have known that she was concealing information that was essential
to the Bar's assessment whether the accused had violated the
disciplinary rules. Thus, as in our analysis of the accused's
conduct in her dealings with Judge Harris, the relevant inquiry
does not turn solely on whether the accused, in her own mind,
thought that she had not provided advice to Patricia Battle or
that she had used the word "prehearing" to mean something
different than commonly understood. It is critical that the
accused knew that she had omitted material facts that would
inform the Bar's analysis of her conduct.

We find that the accused was not truthful or complete
in her response to the Bar. We hold, therefore, that the accused
violated DR 1-103(C). We also hold that the accused's knowing
misrepresentations to the Bar constitute a violation of DR 1-102(A)(3).

D. Summary

To summarize, we hold that the accused committed two
violations of DR 1-102(A)(3), one violation of DR 1-103(C), and
one violation of DR 7-104(A)(2). We turn to the appropriate
sanction.

III. SANCTION

This court follows a well-established methodology for
determining the appropriate sanction for lawyer misconduct. The
court begins by referring to the American Bar Association's
Standards for Imposing Lawyer Sanctions (1991) (amended 1992)
(ABA Standards) for guidance. In reGustafson, 333 Or 468, 486,
41 P3d 1063 (2002) (Gustafson II). Under the ABA Standards, the
court makes a preliminary determination of the appropriate
sanction by considering three factors: the duty violated; the
accused lawyer's mental state; and the actual or potential injury
caused by the accused lawyer's misconduct. In re McDonough, 336
Or 36, 44, 77 P3d 306 (2003); ABA Standard 3.0. We then examine
any aggravating or mitigating circumstances to determine if the
sanction should be adjusted. Id. Finally, we compare prior
Oregon cases and the sanctions imposed in them. McDonough, 336
Or at 46; Gustafson II, 333 Or at 486.

A. Duties Violated

By giving advice to an unrepresented person whose
interests were adverse to those of her client, the accused
violated her duty to the legal system. ABA Standard 6.0. By
misrepresenting facts to the court, the accused violated her duty
to the public to maintain her personal integrity. ABA Standard
5.0. By misrepresenting facts to the Bar during the
investigation into her conduct, the accused violated her duties
as a professional to cooperate completely and truthfully with a
disciplinary investigation. ABA Standard 7.0.

B. Mental State

Under the ABA Standards, an act is intentional if it is
engaged in with the "conscious objective or purpose to accomplish
a particular result." ABA Standards at 7. An act is knowing if
it is engaged in with the "conscious awareness of the nature or
attendant circumstances of the conduct but without the conscious
objective or purpose to accomplish a particular result." Id.
The accused's conduct with respect to Patricia Battle, Judge
Harris, and the Bar demonstrate that she acted at least
knowingly.

The accused knew that she and another person in her
firm had given advice to and prepared documents for Patricia
Battle, an unrepresented person. Her own actions in keeping
Patricia Battle off the stand show that she knew that Patricia
Battle's interests had a reasonable possibility of being adverse
to those of Patricia Battle's husband, Warren Battle, the firm's
client. The accused also acted knowingly when she failed to
disclose to Judge Harris, both in chambers and in her subsequent
letter to him, the extent and content of her communications with
Patricia Battle, at a time when she was aware of the nature of
Judge Harris's concerns about a potential ethics violation
arising out of her relationship with Patricia Battle. Finally,
the accused knowingly omitted revealing that same information to
the Bar in response to the Bar's inquiry into her conduct.

C. Injury

The ABA Standards define "injury" as "harm to a client,
the public, the legal system or the profession which results from
a lawyer's conduct." ABA Standards at 7. To support the
imposition of sanctions, injury may be actual or potential. In
re Williams, 314 Or 530, 547, 840 P2d 1280 (1992). Potential
injury is "harm to a client, the public, the legal system or the
profession that is reasonably foreseeable at the time of the
lawyer's misconduct." ABA Standards at 7. The accused caused
potential injury to Patricia Battle when she gave Patricia Battle
legal advice in a situation in which Patricia Battle's interests
were reasonably likely to become adverse to those of a client of
the accused's firm. The accused caused potential injury to the
legal system when she withheld information from Judge Harris that
would have assisted him in determining whether Patricia Battle
truly understood the request that she purportedly was making.
Finally, the accused caused injury to the profession when she
failed to be truthful with the Bar.

D. Preliminary Sanction

In light of the duties violated, the accused's mental
state, and the injury caused by the accused's conduct, the ABA
Standards suggest that a suspension is appropriate. See ABA
Standard 6.12 (suspension generally appropriate when lawyer knows
that material information improperly has been withheld and takes
no remedial action, causing injury or potential injury to party
or adverse effect on legal proceeding); ABA Standard 7.2
(suspension generally appropriate when lawyer knowingly engages
in conduct that is violation of duty owed as professional and
causes injury or potential injury to client, public, or legal
system).

E. Aggravating and Mitigating Circumstances

We next consider the existence of any aggravating or
mitigating circumstances that may affect the degree of the
sanction to be imposed. ABA Standard 3.0. We find the existence
of several aggravating circumstances. The accused engaged in a
pattern of misconduct and multiple offenses. ABA Standards
9.22(c) and (d). Patricia Battle was a vulnerable victim. ABA
Standard 9.22(h). The accused, who was admitted to practice in
1989, has substantial experience in the practice of law. ABA
Standard 9.22(I).

In mitigation, the trial panel found the existence of
only one factor: the accused has no prior disciplinary record.
ABA Standard 9.32(a). After reviewing the record, however, we
find the presence of additional mitigating factors. First, the
accused introduced evidence that she has a reputation for honesty
in the legal community. ABA Standard 9.32(g). In addition,
there was a substantial delay in the disciplinary proceedings –-
specifically, more than five years had elapsed between the events
that gave rise to these charges and the issuance of the trial
panel's decision in this proceeding. ABA Standard 9.32(j)
(amended 1992). A substantial part of that delay is attributable
directly to the trial panel, which took 19 months to issue its
opinion, during which time the Bar made multiple inquiries
regarding the status of the decision. Finally, we find it
significant that the accused's disciplinary record since the
events that led to this proceeding apparently is unblemished.
SeeIn re Lawrence, 332 Or 502, 515, 31 P3d 1078 (citing
delay and fact that no new complaints had been filed); In re
Unrein, 323 Or 285, 288, 917 P2d 1022 (1996) (same).

F. Case Law

We now turn to a consideration of the appropriate
sanction in light of this court's case law. At the outset, we
reject the accused's contention that a reprimand is the
appropriate sanction. As noted, the ABA Standards suggest that a
suspension is appropriate, and we conclude that the relative
weight of the aggravating and mitigating factors in this
proceeding does not support reducing the putative sanction to a
reprimand.

The trial panel suspended the accused for six months.
The Bar contends that the appropriate sanction is a suspension
for a period of nine months to a year. The Bar contends that the
facts in this case are similar to those presented in In re
Claussen, 322 Or 466, 909 P2d 862 (1996) (Claussen I); In re
Jeffery, 321 Or 360, 898 P2d 752 (1995); and In re
Brandt/Griffin, 331 Or 113, 10 P3d 906 . In Claussen I,
this court suspended a lawyer for one year for his conduct in
engaging in aggravated multiple client conflicts of interest,
intentionally submitting documents to a bankruptcy court that he
knew were untrue (thereby preventing the court from discovering
his conflicts of interest), and repeatedly failing to disclose to
a court material information that he had a duty to disclose. 322
Or at 488. In assessing the appropriate sanction in Claussen I,
this court found the existence of several mitigating and
aggravating circumstances. Id. at 486.

In Jeffery, this court suspended a lawyer for nine
months for his conduct in simultaneously representing two
codefendants in a criminal case, for continuing to represent them
after it was alleged that he himself had participated in the same
crime as his clients, for providing legal advice to an
unrepresented person whose interests were adverse to those of his
clients, and for threatening to refuse to put on a defense for
his clients in the criminal case for the purpose of creating
reversible error. 321 Or at 376. In assessing the appropriate
sanction, the court found multiple aggravating circumstances and
no mitigating circumstances. Id. at 375.

In Brandt/Griffin, this court suspended two lawyers for
12 and 13 months, respectively, for multiple ethical violations
stemming from their conduct in entering into retainer agreements
with parties whose interests conflicted with the lawyers' other
clients, in intentionally misrepresenting facts and withholding
information from their clients in an effort to mask their
conflict, and in failing to respond truthfully to the Bar. 331
Or at 149. Again, this court found the presence of multiple
aggravating and mitigating factors when assessing the appropriate
sanction. Id. at 146-47.

In our view, the conduct in the instant case is much
less egregious than that of the lawyers in the cases discussed
above. Rather, we agree with the trial panel that the accused's
conduct in this proceeding most closely resembles the facts of
Gustafson I, in which a district attorney was suspended for six
months for, among other things, violating DR 1-102(A)(3) and DR
1-102(A)(4) by misrepresenting certain material facts to a court
in the course of a criminal proceeding. 327 Or at 656. There,
the balance of aggravating and mitigating factors was similar to
that presented here: the accused also had no disciplinary
record, but she acted with a selfish motive; she had substantial
experience in the practice of law; she was deceptive during the
disciplinary proceedings; and there was a vulnerable victim. Id.
at 654.

G. Appropriate Sanction

The facts of this case are sufficiently serious to
justify an argument that the accused should receive a six-month
suspension. However, in this case, the more than five-year
delay, much of it post-hearing, coupled with the fact that the
accused has not been subject to disciplinary action in the
interim, militates in favor of a suspension of less than six
months here. We conclude that suspending the accused from the
practice of law for 90 days is appropriate.

The accused is suspended from the practice of law for a
period of 90 days, commencing 60 days from the filing of this
decision.

1. In June 1998, this court declared Measure 40 to be in
violation of the separate-vote requirement of Article XVII,
section 1, of the Oregon Constitution. Armatta v. Kitzhaber, 327
Or 250, 959 P2d 49 (1998). The following year, the voters
approved a new version of Article I, section 42, that still is in
effect today. That new version of Article I, section 42, sets
out the same "victim's rights" as those at issue in this
proceeding, although it does not include all the provisions of
the 1996 version of Article I, section 42 (enacted by Measure
40).

2. Kelly had worked briefly for another lawyer before
going to work for the accused's firm. He made the change of
firms because he felt that he needed more help and supervision
than he had received in his previous employment.

"It has come to my attention as the victim in the
above mentioned case that I have certain rights under
the Oregon Constitution. I am referring specifically
to Article I § 42 of the Oregon Constitution. Acting
pursuant to these rights I am requesting that you
schedule a hearing to dismiss the charges against
Warren Battle."

As Kelly originally drafted the affidavit, it simply
provided: "I wish to assert the rights given to me under the
Oregon Constitution Article I § 42." As signed by Patricia
Battle, it also included the following two sentences: "I have
contacted the District Attorney's office and communicated my
wishes that this case be dismissed," and "[t]he District Attorney
has not responded."

4. It is clear that Judge Harris was not seeking to punish
any unethical conduct that he might uncover; rather, he simply
wished to be sure that he understood what legal advice, if any,
Patricia Battle had received. SeeKidney Association of Oregon
v. Ferguson, 315 Or 135, 143, 151-44, 843 P2d 442 (1992) (not
trial court's function to punish ethical violations as such).

5. Judge Harris later testified that, although he had not
specifically asked the accused if she or anyone at her firm had
had contacts with Patricia Battle, he expected the accused to
disclose all facts relevant to the question whether she and
others were providing legal advice to Patricia Battle, including
detailing the firm's contacts with both Warren and Patricia
Battle.

6. What the accused sought to accomplish by use of the
word "alleged" escapes us. Whatever the nature of the
transaction between the accused's firm and Patricia Battle, there
certainly had been some interaction between them.

"(1) An 'actual conflict of interest' exists when
the lawyer has a duty to contend for something on
behalf of one client that the lawyer has a duty to
oppose on behalf of another client.

"(2) A 'likely conflict of interest' exists in all
other situations in which the objective personal,
business or property interests of the clients are
adverse. A 'likely conflict of interest' does not
include situations in which the only conflict is of a
general economic or business nature."

8. In the present case, Patricia Battle stated in her
request for waiver of the no-contact condition of Warren Battle's
release agreement that her husband never had been abusive to her
and that she needed him at home to care for their two daughters
while she was at work.

9. Unlike certain kinds of conflicts covered by DR 5-105,
particularly by DR 5-105(D) and (F), which provide a way (with
"consent * * * after full disclosure") for a lawyer to represent
two clients whose interests may be adverse, the prohibition in DR
7-104(A)(2) is not waivable.

12. The Bar suggested in its brief, but did not argue, that
the accused's later misrepresentations by nondisclosure in her
follow-up letter to Judge Harris and in her eventual responses to
the Bar's inquiry into her conduct constitute repeated acts
triggering application of DR 1-102(A)(4). However, those later
misrepresentations did not affect the judicial proceeding before
Judge Harris. Therefore, they are not the type of repetitious
episodes of conduct that trigger application of DR 1-102(A)(4).

13. We acknowledge that, in the past, this court summarily
has concluded that a lawyer's conduct that violated DR 1-102(A)(3) also violated DR 7-102(A)(3). See, e.g., In re
Leonhardt, 324 Or 498, 507-08, 930 P2d 844 (1997) (accused
lawyer's misrepresentations to court that violated DR 1-102(A)(3)
also violated DR 7-102(A)(3)); In re Claussen, 322 Or 466, 481,
909 P2d 862 (1996) (Claussen I) (court found violation of DR 7-102(A)(3) when accused lawyer intentionally failed to disclose to
bankruptcy court facts that he was duty-bound to disclose, in
violation of DR 1-102(A)(3). Notwithstanding those decisions, we
do not think that the rote conclusion that conduct that violates
DR 1-102(A)(3) automatically violates DR 7-102(A)(3) is proper.
Therefore, in the absence of any persuasive argument or analysis
from either the Bar or the trial panel indicating how DR 7-102(A)(3) is pertinent to this case, we decline to hold that the
accused violated that rule.